M.E. and Department of the Treasury, Internal Revenue Service, Florence, KY (Board decision, December 31, 2019)

ECAB final decision on this appeal. The Board set aside OWCP’s January 16, 2019 overpayment decision and remanded. OWCP must still decide whether any federal-service Social Security offset created an overpayment and its amount. A party may petition the Board for reconsideration within 30 days of issuance unless this decision specifies another period, under 20 C.F.R. § 501.7(a).

Plain-English summary

An IRS employee challenged OWCP’s finding that she had received an $8,278.13 overpayment because Social Security benefits tied to federal service were not offset from her wage loss benefits. She said some benefits came through her deceased spouse, and Social Security had not clarified the amounts. The Board found that OWCP had not established which benefits were attributable to federal service. It set aside the overpayment decision and ordered OWCP to obtain clarification and decide the amount anew.

Decision snapshot

• Authority: FECA offset and OWCP burden to prove an overpayment.
• Outcome: January 16, 2019 overpayment decision set aside; remanded.
• Key point: OWCP needed Social Security benefit details before it could establish an offset overpayment.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
M.E., Appellant
)
)
and ) Docket No. 19-0856
) Issued: December 31, 2019
DEPARTMENT OF THE TREASURY,
)
INTERNAL REVENUE SERVICE,
)
Florence, KY, Employer
)
__________ )

Appearances: Case Submitted on the Record
Appellant, pro se
Office of Solicitor, for the Director

ORDER REMANDING CASE

Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge JANICE B. ASKIN, Judge

On March 15, 2019 appellant filed a timely appeal from a January 16, 2019 decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards docketed the appeal as No. 19-0856.

On January 29, 1988 appellant, then a 48-year-old clerk, filed a traumatic injury claim (Form CA-1) alleging that on January 28, 1988 she injured her back while in the performance of duty. OWCP accepted the claim for cervical strain and a strain of the right rotator cuff. It subsequently expanded acceptance of the claim to include right lateral epicondylitis, degenerative disc disease with radiculopathy, tendinitis, and permanent aggravation of a disc condition at C5-6. Appellant stopped work on January 28, 1988. OWCP paid her wage-loss compensation for total disability beginning March 14, 1988.1

On October 19, 2017 OWCP notified appellant of its preliminary determination that she had received an overpayment of compensation in the amount of $8,278.13 for the period January 1,

1
By decision dated July 10, 2002, OWCP reduced appellant’s wage-loss compensation based on its finding that her actual earnings as a modified clerk effective May 6, 2002 fairly and reasonably represented her wage-earning capacity. 2004 through June 24, 2017 as it had failed to appropriately offset the portion of her Social Security Administration (SSA) benefits attributable to her federal service from her wage-loss compensation benefits. It further advised her of its preliminary finding that she was at fault in the creation of the overpayment.

On November 21, 2017 appellant requested a prerecoupment hearing before an OWCP hearing representative. At the June 14, 2018 telephonic prerecoupment hearing, she contended that she received SSA benefits based on her husband’s earnings subsequent to his death on February 18, 2011. Appellant further questioned whether she was covered under the Federal Retirement System (FERS) rather than the Civil Service Retirement System (CSRS).

Subsequent to the hearing, appellant submitted retirement information from the Office of Personnel Management (OPM) and SF-50s from the employing establishment indicating that she had FERS retirement coverage.

By decision dated August 23, 2018, OWCP’s hearing representative remanded the case for OWCP to obtain clarification from SSA regarding whether appellant received SSA survivor’s benefits or age-related benefits due to her federal service. She noted that the evidence of record established that appellant had FERS retirement coverage.

On remand, by letter dated September 5, 2018, OWCP requested that SSA specify whether appellant had received SSA benefits attributable to her federal service for the period January 1, 2004 through June 24, 2017, noting that she also had received SSA survivor’s benefits beginning February 18, 2011.

SSA did not respond to OWCP’s request for clarification.

By decision dated January 16, 2019, OWCP found that appellant had received an overpayment of compensation in the amount of $8,278.13 for the period January 1, 2004 through June 24, 2017 because it had failed to offset the amount of SSA benefits that she received attributable to her federal service from her wage-loss compensation.2 It noted that it had not been able to obtain additional information from SSA regarding her benefits. OWCP found that appellant was without fault in the creation of the overpayment of compensation, but denied waiver of recovery of the overpayment. It determined that it would recovery the overpayment by withholding $170.83 from her continuing compensation payments every 28 days.

The Board has duly considered the matter and finds that the case is not in posture for decision. OWCP’s hearing representative remanded the case for OWCP to clarify whether appellant had received SSA benefits as part of FERS based on her federal service or survivor’s benefits from her husband. She instructed OWCP to determine the exact amount of the benefits, if any, she received due to her federal service. On remand OWCP attempted to obtain information from SSA; however, SSA failed to respond to its request. It has the burden of proof to establish that appellant received an overpayment of wage-loss compensation of $8,278.13 based on its failure to offset her SSA benefits based on her federal service for the period January 1, 2004 through June 24, 2017. The offset provision of FECA applies to SSA benefits that are attributable

2
OWCP issued a preliminary determination of overpayment on December 12, 2018.

2 to federal service.3 As OWCP has not established that appellant received benefits from SSA in the amount of $8,278.13 based on her federal service for the period in question, rather than survivor’s benefits from her deceased spouse, it has not met its burden of proof.4 The Board has held that, in an overpayment situation, OWCP must explain the basis for its finding of overpayment and how the amount of overpayment was calculated.5

Accordingly, the case will be remanded to OWCP for it to again request clarification from SSA regarding the amount, if any, of age-related retirement benefits appellant received based on her federal service.6 Following receipt of that information it will then determine whether she received an overpayment of compensation, and the period and amount of the overpayment. Following this and any further development deemed necessary, OWCP shall issue a de novo decision.

IT IS HEREBY ORDERED THAT the January 16, 2019 decision of the Office of Workers’ Compensation Programs is set aside and the case is remanded to OWCP for further proceedings consistent with this order of the Board.

Issued: December 31, 2019
Washington, DC

Christopher J. Godfrey, Chief Judge
Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge Employees’ Compensation Appeals Board

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

3
5 U.S.C. § 8116(d)(2); 20 C.F.R. §10.421(d); A.C., Docket No. 19-0174 (issued July 9, 2019).
4
See A.C., id. (finding that OWCP had not met its burden of proof to establish an overpayment of compensation when it had not established that appellant received benefits under FERS rather than CSRS). 5 See M.M. (J.M.), Docket No. 17-0560 (issued August 23, 2017).
6
See generally D.B., Docket No. 16-1224 (issued June 23, 2017) (finding that OWCP must clarify whether the offset rates under CSRS offset were the same as in the FERS retirement plan).

3